DHS waived 19 federal laws so a fence could be built on the Arizona-Mexico border; two environmentalist groups challenged the ruling, but the U.S. Supreme Court rejected challenge

The Supreme Court rejected today a legal challenge by two environmental groups to the DHS secretary’s decision to waive nineteen federal laws so a fence could be built on the Arizona-Mexico border. The high court refused to hear an appeal by Defenders of Wildlife and the Sierra Club challenging a 2005 law that Secretary Michael Chertoff invoked on the grounds that it violated the constitutional separation of powers principles. The Republican-led Congress in 2005 gave Chertoff the power to waive environmental and other laws to build fences and other border barriers in an effort to stop the flow of illegal immigrants into the United States. Chertoff has issued a number of waivers for the planned barrier fence along the Mexican border. In April, he issued waivers for various projects across nearly 500 miles in California, Arizona, New Mexico and Texas.

The two environmental groups argued that Chertoff’s waiver in their case represented an unconstitutional repeal of federal laws. The waiver provision amounted to an unconstitutional delegation of legislative power to Chertoff, with only limited judicial review of his decision, they said. In the Arizona case, Chertoff issued the waiver in October after a federal judge ruled for the environmental groups by temporarily blocking further construction of the fence in a natural conservation area. The fence was being built in southeastern Arizona in the San Pedro Riparian National Conservation Area, which the environmental groups describe as unique and biologically diverse, with more than 250 species of migratory birds. Under the law, Chertoff has the sole discretion to waive all legal requirements when he decides it is necessary to speed up construction of barriers along the border. Congress also set limited, streamlined judicial review of such waivers. A U.S. district judge may hear a challenge only if it alleges a constitutional violation and has been brought within sixty days of Chertoff’s waiver. Any ruling by the judge cannot be appealed to a U.S. appeals court, the typical next step in the judicial system. It can be reviewed only by the Supreme Court.

Attorneys for the two environmental groups said the case presented legally significant and practically important questions, as the law involved virtually unprecedented restriction of appellate review. Fourteen Democratic members of the House of Representatives, including the chairmen of the homeland security, the judiciary and the intelligence committees, supported the appeal. Justice Department attorneys urged the Supreme Court to reject the appeal. They said a ruling in the case by a federal judge rejecting the challenge was correct and does not conflict with any decision by the high court or any other court. The Supreme Court sided with the Justice Department and denied the appeal without comment.